Opinion
Civil Action No. 04-6128 (WHW).
June 26, 2006
OPINION AND ORDER
This matter comes before the Court upon the submission by Petitioner of his Applications [9, 10] to supplement or expand the record and file a successive petition for writ of habeas corpus. In support of his Applications, Petitioner asserts that the New Jersey State Parole Board has miscalculated his maximum custody date and his parole eligibility date, and he seeks to assert a new claim based upon these allegations. Petitioner does not allege that he currently is being held beyond his release date. Petitioner asserts in his proposed amended petition that he has not pursued his state-court remedies because appellate review of the actions of the Parole Board would be untimely and, therefore, futile.
It appearing that:
1. The claims in Petitioner's pending Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 attack his conviction, rather than the execution of his sentence.
2. A state prisoner applying for a writ of habeas corpus in federal court must first "exhaust the remedies available in the courts of the State," unless "there is an absence of available State corrective process or . . . circumstances exist that render such process ineffective. . . ." 28 U.S.C. § 2254 (b)(1).
3. Here, Petitioner alleges that state remedies are either unavailable or ineffective to protect his right to review. Before exhaustion will be excused on the basis that state process is not available, "state law must clearly foreclose state court review of unexhausted claims." Toulson, 987 F.2d at 987. Alternatively, the Court of Appeals for the Third Circuit has stated that, "if a prisoner could establish that the activities of the state authorities made the prisoner's resort to the state procedures in effect unavailable, exhaustion would be excused."Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.), cert. denied, 484 U.S. 946 (1987).
4. Here, state law provides administrative and judicial review processes applicable to Petitioner's claims, and Petitioner has failed to allege any facts that would lead this Court to conclude that resort to those procedures is, in effect, unavailable. Specifically, any denial of parole by an Adult Panel is appealable to the Parole Board, provided certain conditions are met. N.J. Admin. Code Title 10 Sec. 71-4.2. In addition, New Jersey law provides an absolute right to appeal any action or decision of a State administrative agency to the Superior Court, Appellate Division, both under the State Constitution, N.J. Const. Art. VI, Sec. 5, para. 4; Trantino v. New Jersey State Parole Board, 166 N.J. 113, 172 (N.J.),modified on other grounds, 167 N.J. 619 (2001), and under the New Jersey Court Rules, Pressler Current New Jersey Court Rules, Rule 2:2-3(a)(2) (2001). This exclusive procedure encompasses appeals from "inaction as well as action of a State administrative agency." Trantino v. New Jersey State Parole Board, 296 N.J. Super. 437, 459-460 (App.Div. 1997), modified on other grounds and affirmed, 154 N.J. 19 (1998); Johnson v. State Parole Board, 131 N.J. Super. 513, 517-18 (App.Div. 1974), certif. denied, 67 N.J. 94 (1975). See also Petrucelli v. Department of Civil Service, 28 N.J. Super. 572, 575 (App.Div. 1953) ("The import of the rule embraces official administrative conduct of a negative character as well, such as, for example, the refusal to consider a meritorious petition, or to conduct a hearing, or to render any decision in a controversial cause appropriately before the [agency].").
Moreover, if a New Jersey agency fails or declines to consider an administrative appeal from a decision of a lower agency official, the decision sought to be appealed is deemed the agency's final decision for purposes of any subsequent appeal to the state appellate courts. See, e.g., New Jersey State Parole Board v. Cestari, 224 N.J. Super. 534, 542 n. 2 (App. Div.), certif. denied, 111 N.J. 649 (1988) (where the full Parole Board declines to consider an administrative appeal from an Adult Panel of the Board, "the decision of the Adult Panel is the final decision of the agency").
5. Petitioner has failed to establish that exhaustion of his claim should be excused.
6. This Court makes no findings as to the merits of Petitioner's claims that his maximum custody date and parole eligibility date have been miscalculated.
IT IS, therefore, on this 26 day of June, 2006,
ORDERED that the Applications [9, 10] for leave to expand the record and amend the Petition are DENIED WITHOUT PREJUDICE.